Opinion
No. State 122.
Argued: February 7, 1969.
Decided: March 4, 1969.
APPEAL from a judgment of the circuit court for Dane county: WILLIAM C. SACHTJEN, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Jack McManus of Madison.
For the respondent the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Robert W. Warren, attorney general, and William A. Platz, assistant attorney general.
On June 10, 1968, the defendant Frederick Earl Draper (hereinafter the "defendant") was convicted on his plea of guilty of reckless use of a weapon, in violation of sec. 941.20(1)(c), Stats. He was sentenced to six months in the county jail.
The charge is a misdemeanor. "(1) Whoever does any of the following may be fined not more than $200 or imprisoned not more than 6 months or both:
". . .
"(c) Intentionally points a firearm at or toward another."
On June 14, 1968, the defendant filed an order to show cause why the conviction and sentencing of the defendant should not be reopened and vacated. The order to show cause was supported by an affidavit signed by the defendant. Apparently when the order to show cause came on for hearing the parties obtained permission to submit the matter on affidavits. No such order or stipulation appears on the record but neither does the record contain any transcript of a hearing on the order to show cause. Instead the record contains six affidavits, all of which were dated about August 20, 1968.
The first affidavit was from the defendant. It alleged that the defendant was interrogated at the district attorney's office on June 10, 1968, prior to his appearance in court. At that time the district attorney did not inform the defendant of his constitutional rights. Moreover, the district attorney agreed that, in exchange for a guilty plea, he would not recommend a jail sentence in the case. The affidavit also states that the affiant was misled into a guilty plea by the judge at the initial appearance and that before sentence was passed, but after the guilty plea was entered, the affiant asked the district attorney if he could withdraw his plea of guilty. The district attorney replied that he could not.
The second affidavit was from Harry A. Deadman, the defendant's employer who accompanied the defendant on June 10, 1968. His affidavit states that he heard the district attorney agree not to recommend a jail sentence if defendant would plead guilty. The affiant also stated that after the district attorney recommended some jail time to the judge, but before sentence was passed, the defendant asked the district attorney if he could withdraw his guilty plea but the district attorney shook his head in a negative fashion.
The third affidavit is by Donald W. Smith, the assistant district attorney who conferred with the defendant prior to his court appearance on June 10, 1968. This affidavit states that Detective Kalhagen brought the defendant to the affiant's office on June 10, 1968, that the detective told affiant that the defendant had been fully advised of his constitutional rights, but that the defendant's employer wanted to speak to affiant relative to the charge against the defendant. The affidavit goes on to state that affiant never promised to anyone that he would not recommend a jail sentence in exchange for a guilty plea, and that the defendant asked affiant if he could withdraw his guilty plea after sentence had already been passed. Affiant at that time stated that it was too late.
The fourth affidavit is from Detective Kenneth Kalhagen. The affiant states that he was engaged in the ordinary performance of his duties on June 10, 1968, when he was approached by the defendant's employer who wanted to discuss the charge against the defendant. The affiant states that he refused to discuss the case against the defendant unless the defendant was first informed of his rights and signed a rights waiver. Instead, affiant took the defendant to Mr. Smith's office. During the conversation in Mr. Smith's office, affiant states that he heard Mr. Smith advise the defendant that he was going to recommend some jail time. Affiant specifically stated that he did not hear any promises made to the defendant regarding any sentence, recommendation, or fine. The affidavit does not state that the affiant advised the defendant of his constitutional rights.
The fifth affidavit was from Sergeant Calvin F. Traver who was on the scene shortly after the defendant was arrested. This arrest occurred at approximately 1:30 a. m. on June 10, 1968. Affiant personally advised the defendant that he had the right to remain silent, that he had the right to counsel and, if he was unable to pay for counsel, an attorney would be furnished at public expense, that any statement he made could be used against him in a court of law, that he could refuse to answer questions at any time, and that he could call an attorney at any time. Affiant took defendant to the police station where he witnessed Officer Pigorsch again advising the defendant of his constitutional rights before any interrogation began.
The last affidavit is from Officer Robert L. Pigorsch, the arresting officer. He states that he personally informed the defendant of his constitutional rights when the defendant was taken into custody, that Sergeant Traver later advised the defendant similarly, that the defendant was again advised of his rights at the police station, but that defendant refused to sign a waiver of rights form.
The county court — W. L. JACKMAN, Acting County Court Judge — denied the defendant's motion for leave to withdraw his guilty plea.
This order was appealed to the circuit court for Dane county, and on September 20, 1968, the circuit court affirmed the order of the county court. A judgment to this effect was signed on October 4, 1968. The defendant appeals from the judgment.
The issue on this appeal is whether the trial court abused its discretion in denying the defendant's request to withdraw his guilty plea.
The defendant contends that it is an abuse of discretion not to allow the withdrawal of a guilty plea when a manifest injustice occurs. The alleged injustice arose because (1) the request to withdraw the guilty plea was made timely and should have been granted; (2) the defendant was denied the effective assistance of counsel; (3) the defendant's plea was involuntary; (4) the district attorney did not live up to a plea agreement; and (5) the defendant was not properly advised of his constitutional rights.
Motion to Withdraw Plea.
The defendant contends that he did not obtain counsel until the day after he was sentenced but that a motion to withdraw his guilty plea was made immediately thereafter.
In State v. Reppin (1967), 35 Wis.2d 377, 151 N.W.2d 9, this court adopted the Tentative Draft of the American Bar Association Project on Minimum Standards for Criminal Justice — Pleas of Guilty.
(Tentative Draft, February, 1967), Part II, pp. 9, 10.
"2.1 Pleas withdrawal.
". . .
"(i) A motion for withdrawal is timely if made with due diligence, considering the nature of the allegations therein, and is not necessarily barred because made subsequent to judgment or sentence."
There can be no argument with the statement that this motion was timely made. However, it should be noted that when a motion is made for withdrawal of the plea before sentence is passed:
". . . less proof would be needed to grant such a motion' than if it were made after sentencing." State v. Reppin, supra, at page 384.
Whether the defendant's oral request to withdraw his guilty plea occurred before or after sentencing, it was timely and should have been called to the court's attention by the district attorney. However, since it is apparent from this appeal that the defendant has had the opportunity to be heard on his objections to the guilty plea, he was not prejudiced by the failure of the district attorney to inform the court of the request to withdraw the plea.
It should also be noted that it is difficult to believe that the defendant requested the withdrawal of his plea before sentence was passed. The record made at the time of the plea clearly indicates that neither the defendant nor his employer were reluctant to make comments to the court. If there had been a desire to make the request, it would almost certainly have been on the record. Moreover, the allegations in the affidavits of such an early request for a withdrawal of the plea appear to have been abandoned on this appeal, as there has been no reference to such a request either in the defendant's brief or on oral argument.
The motion to withdraw the guilty plea was made timely, but that does not mean that it should have been granted. Whether sufficient grounds were alleged for withdrawal of the plea is the question which must be answered on this appeal.
Denial of Assistance of Counsel.
Defendant contends that it was a manifest error not to appoint counsel at public expense in this case because a potential six-month sentence is severe and substantial.
Although the trial court could have provided counsel in this case, he was not obliged to do so.
". . . Hence, to insure the fair administration of justice we here decide that counsel should be provided, in accordance with rules established by previous decisions of this court, in the case of all indigents charged with a misdemeanor when the maximum penalty for imprisonment exceeds six months and in such other cases in which the trial court, in the exercise of its sound discretion, deems it necessary and desirable in order to attain the best interest of justice." State ex rel. Plutshack v. HSS Department (1968), 37 Wis.2d 713, 724, 725, 155 N.W.2d 549, 157 N.W.2d 567. (Emphasis supplied.)
The court did advise the defendant that:
". . . if you wish to obtain counsel you will be given a chance to do so. Of course, you have the right to represent yourself. Now, what is your wish in the matter?"
Involuntary Plea.
The defendant argues that the trial court coerced a guilty plea. The record made at the time of the plea amply refutes that allegation.
" The Court: All right. Mr. Draper, what is your plea to the charge?
" The Defendant: I will plead no contest because I didn't point it at anyone, but I had it in my hand.
" The Court: Well, no contest gives the Court the right to adjudge you guilty, so if you think you are not guilty you shouldn't plead no contest, because that's a plea of guilty. The complaint alleges — the complaining witness alleges that you pointed the pistol at him several times — on several different occasions, so if you feel you're not guilty, then your plea better be not guilty, and we'll set the matter for trial. Is that what you want to plead, not guilty?
" The Defendant: No I had the gun but I didn't point it at him or anything.
" The Court: Now, you're charged with pointing the gun; you tell me you didn't, but you want to plead guilty.
" The Defendant: I had the gun, yes, in my hand.
" The Court: You're charged with pointing the gun; that's what you're charged with. I have said that three times. What do you want to plead to that charge? Don't plead not guilty and tell me you didn't do — or don't plead guilty and tell me you didn't do it, because you're not being consistent. What you're charged with is unlawfully pointing a firearm at Charles Walter Roberts. Now, it should be — if there is any doubt in your mind, then don't plead guilty to a crime; ask the Court to set the matter for trial.
" The Defendant: I will plead guilty.
" The Court: All right, then on your plea of guilty the Court adjudges you guilty. . . ."
The affidavits of the defendant which state that he was misled by the trial court must be considered in conjunction with this record. We conclude that the defendant has failed to raise even a reasonable doubt as to the voluntariness of his plea.
Plea Bargaining Agreement.
The affidavits of the defendant and his employer allege that the district attorney agreed not to recommend a jail sentence in exchange for a plea of guilty. The affidavits of the district attorney and a detective who was present allege that no plea agreement was made. Two other factors should be considered. First, the defendant initially entered a plea of no contest. He only pleaded guilty after he was informed of the effect of his initial plea. Second, the following conversation took place between the court and the district attorney.
" The Court: . . . Well, are you prepared to make a recommendation, Mr. Smith?
" Mr. Smith: Your Honor, I'd recommend some jail time; the exact period I'd leave up to the Court. . . ."
There was no objection to this conversation by either the defendant or his employer.
When an accused seeks to withdraw his guilty plea, he has the burden of showing adequate grounds for withdrawal.
". . . This burden is the clear and convincing evidence test and such burden is in accord with the rule in other jurisdictions." State v. Reppin, supra, at page 385.
". . . If it is going to be permissible to withdraw a guilty plea because a plea agreement was violated, the first element which the accused should have to prove is that a plea agreement was actually made." LeFebre v. State (1968), 40 Wis.2d 666, 672, 162 N.W.2d 544.
The defendant has not established that a plea agreement was made.
Failure to Advise of Constitutional Rights.
The defendant contends that he was interrogated by the district attorney without first being advised of his constitutional rights. Although it seems the defendant had been advised of his rights at the time of his arrest, it does not clearly appear that the defendant was again instructed later in the day when he discussed the charge with the district attorney.
". . . But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him." Miranda v. Arizona (1966), 384 U.S. 436, 479, 86 Sup. Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R. 3d 974. (Emphasis supplied.)
The prosecution never offered any evidence against the defendant. He was convicted on his own plea. Even assuming that the proper warnings were not given in a timely manner, the defendant has not been prejudiced.
The trial court in denying the defendant's motion to withdraw the plea found that no manifest injustice occurred in either the proceedings or judgment of guilt based on the plea. The circuit court on appeal was of the opinion that no manifest injustice has been shown. We find nothing in this record which would require this court to hold to the contrary as a matter of law.
By the Court. — Judgment affirmed.